The Return of Pen-and-Phone Constitutionalism
On Saturday, President Trump put his name to four executive actions — three presidential memoranda and one executive order — intended to offer some relief to Americans dealing with the consequences of the COVID-19 pandemic. The premise of these actions, made explicit in the text of each, was that Congress had failed to act and now the chief executive has to step in. It is a premise fundamentally at odds with the logic of our constitutional order, and it points to a number of dangerous dysfunctions in the American system of government that are now thoroughly bipartisan.
As a matter of substantive policy action, there is less to these four actions than might meet the eye. The first (in ascending order of significance) is an executive order intended to protect Americans facing eviction now that the moratorium on some kinds of evictions that Congress put in place in the CARES Act in March has expired. As a practical matter, the order does more or less nothing, merely instructing several federal officials to look into ways to help renters facing evictions. No new authorities are asserted or exercised.
The second, a presidential memorandum on student-loan relief, extends the deferral of student-loan obligations, allowing borrowers to miss payments without penalties. The administration announced that deferral policy in late March. The CARES Act codified it through the end of September. And the president now says it will continue through the end of the year even if Congress doesn’t formally codify a new extension.
The third, a presidential memorandum on aid to the unemployed, purports to fill the gap created by the expiration of the emergency supplemental unemployment-insurance benefits that Congress established in the CARES Act. But since the president can’t appropriate new money, what the order actually does is enable states to apply for FEMA grants under the Stafford Act and then use that money to provide additional unemployment benefits. The Stafford Act requires states to share in the spending — essentially putting in a quarter of the amount they spend and getting the other three-quarters from Washington. That means that, under the arrangement laid out in this new memo, states can apply to provide qualified residents with an extra $400 per month in unemployment benefits if they cover $100 of that cost while the federal government covers $300. Given the fiscal pressures they confront, this may be a tall order for many states. And as it’s written, the memo appears to offer these funds as a new and separate stream of money, not as additional resources for the states’ existing unemployment-insurance programs, which suggests that actually providing benefits this way could take months to implement.
Fourth, and most controversial, is a presidential memorandum that suspends payroll-tax payments for some workers through the end of the year. Workers who earn less than $8,000 a month can defer payroll-tax payments from September 1 through December 31. They would then be required to pay those back taxes (albeit without penalties or interest), but the Treasury secretary is instructed to “explore avenues, including legislation” to have those back taxes forgiven. So the order would let workers not pay these taxes and then dare Congress to make them cough up the money at the end of the year — basically pressuring legislators to enact a payroll-tax cut that neither party in Congress wanted but that the president would like to see.
As real relief, these measures are precarious and weak. But as exertions of executive authority, the latter two memoranda in particular are constitutionally dangerous. That is not to say that a judge would necessarily throw them out; they are substantively weak because they are written to avoid expressly violating any law. And if the Constitution is just a law as well, then there are surely justifications that the administration’s lawyers could offer for both memos that might satisfy the federal courts.
But if the Constitution is more than a law, if it establishes a system of government with a particular character, then there could hardly be any question that a presidential action explicitly setting out to change federal policy regarding both spending and taxing, and to do so precisely because Congress has declined to take these steps, violates that character.
The president did not even attempt to deny that he was stepping into Congress’s terrain and taking actions that are in essence legislative. As the executive memorandum to provide additional unemployment benefits puts it:
Because many of the relief programs created by the Congress have expired or will shortly expire, my Administration and the Republican leadership in the United States Senate have proposed multiple options to continue to provide needed relief to Americans. But Democratic Members of Congress have twice blocked temporary extensions of supplemental unemployment benefits. Political games that harm American lives are unacceptable, especially during a global pandemic, and therefore I am taking action to provide financial security to Americans.
This is an admission of constitutional impropriety. Maybe there is nothing here that would lead a judge, applying doctrines prudently constructed to limit judicial micromanagement of republican government, to overturn these orders. But there is plenty that should lead Congress and the public to regard the president’s actions as unconstitutional. And there is nothing contradictory, or even particularly mysterious, about those two differing assessments. A judge has a particular role to play in our system of government. But judicial scrutiny is not the only sort of constitutional scrutiny. As University of Virginia political scientist James Ceaser has put it, the Constitution needs to be understood in two separate if related senses:
The first sense — legalistic constitutionalism — understands the Constitution as a set of rules that can decide policies or cases; these rules are of a sort that can offer definitive answers and that could be employed and enforced by courts. The second sense — political constitutionalism — understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions. By this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.
We have leaned very heavily in recent years in the direction of a legalistic understanding of the Constitution. But as Ceaser notes, the political understanding is at least as crucial. It is an understanding that should leave us less willing to overlook obvious constitutional improprieties because they can technically be justified by obviously cynical and manipulative lawyerly gimmicks. The president is taking a legislative action. Maybe a judge can’t call it that, but a citizen surely can.
This kind of presidential usurpation has actually not been particularly common in the Trump era, when presidential weakness has been more the norm. With some exceptions (such as the “emergency” spending on a border wall), President Trump’s constitutional excesses have mostly been rhetorical. In fact, the tactic employed by the president with these new orders was much more at home in the Obama era. It was evident above all in President Obama’s assertion of authority over immigration, with his Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. In both instances, President Obama essentially rewrote immigration law. And although his lawyers argued he was working within the legal bounds of the enforcement discretion afforded the executive branch in executing laws, Obama himself openly acknowledged he was acting in place of Congress. In a speech announcing DAPA to the nation, for instance, Obama said:
And to those members of Congress who question my authority to make our immigration system work better or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill. I want to work with both parties to pass a more permanent legislative solution. And the day I sign that bill into law, the actions I take will no longer be necessary.
This was precisely the same sort of admission that President Trump made in laying out his payroll-tax relief. Trump could have simply quoted his predecessor’s famous line: “Where Congress won’t act, I will.” And the method Trump employed was also the same as Obama’s: enforcement discretion, through which the president effectively creates a new law by declining to enforce the existing one.
The Obama administration took a similar approach to federal drug laws, announcing in 2013 (without congressional authorization) that it would stop enforcing laws against marijuana in states with a more permissive approach to the drug, thereby effectively creating a new legal regime without the necessary legislative action.
Republicans raised the alarm when Obama took this approach to immigration and drug laws. In fact, after the Obama administration launched the DAPA program in 2014, Senator Ted Cruz raised a specific concern about where it might lead. He said:
For all those who are silent now: What would they think of a Republican president who announced that he was going to ignore the law, or unilaterally change the law? Imagine a future president setting aside environmental laws, or tax laws, or labor laws, or tort laws with which he or she disagreed. That would be wrong — and it is the Obama precedent that is opening the door for future lawlessness.
That is precisely what has now happened, and it is indeed wrong. But so far, most Republicans in Congress seem reticent to say so. As in the Obama years, the president’s party in Congress is all too eager to encourage an executive incursion onto legislative turf.
And thus, one kind of constitutional failure invites another: An absence of the necessary constitutional self-restraint on the part of the presidents is answered with an absence of the necessary constitutional assertiveness on the part of Congress. These are both failings of constitutional virtue.
And they are not the only such failures at the juncture of the two elected branches. They have emerged alongside Congress’s eagerness to delegate its power to administrative agencies and the Senate’s lack of interest in asserting its advice-and-consent powers (as the executive branch fills with “acting” officers in the Trump era just as it did with recess appointments in the Obama years).
These are challenges that the courts are institutionally ill suited to remedy. They require the other constitutional institutions to take account of their responsibilities, and they require a citizenry keen to insist on the proper functioning of our constitutional order. The tradition of judicial restraint in matters of enforcement discretion does not justify Congress’s abdications of constitutional power and responsibility. Quite the opposite, in fact: Where courts cannot prevent a president’s anti-constitutional action, Congress’s own responsibility for constitutional preservation becomes all the greater.
President Trump’s COVID-relief orders are mostly for show. Their substantive effects are likely to be modest. But their revival of presidential pen-and-phone policymaking threatens to further undermine the foundations of our constitutional government. Debating this controversy strictly in terms of court-centric legalisms will only further lull us into regarding the defense of the constitutional system as someone else’s problem. The courts may be unable to push back, but Congress and the people can and should.
— Yuval Levin is director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs. Adam White is a resident scholar at the American Enterprise Institute and the director of the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University.
